SG Mehta takes the bench through figures of donations prior to the Electoral Bonds scheme.
CJI: We are not here saying that a political party is holier than the other. We have no problem. This figure you've said is 2004-05 to 2014-15.
SG: I also didn't say anything. I only highlighted the period.
CJI: That mis-match is sufficient to know as to how much money has gone to the party in power. So it's not that the possibility of Retribution is avoided from this scheme.
SG: After I explain the scheme to you, your lordships may have a rethink... otherwise what is the better solution? Reverting to the earlier scheme?
CJI: Party ABC knows how much has come from this company. You also know from the company's balance sheet how much it has contributed in a macro sense.
SG Mehta: Nobody can get to know including the Central Government. I can show from the scheme
CJI: Retribution is not avoided by the scheme. I'll tell you the simple reason. Under the Companies Act, now modified, a company doesn't have to disclose to which political party it has contributed. But it has to show how much it has contributed.
CJI: So a company says I've contributed 400 cr this FY. Now the party in power knows how much has come to it in terms of Electoral Bonds from that company.
SG Mehta: It can never know.
CJI: No, the party ofcourse knows.
Justice Khanna: Because of this selective confidentiality, the opposition party may not know who are your donors. But donors to the opposition party can be ascertained, atleast by the investigative agencies. So they're at a disadvantage to question you on your donations.
Justice Khanna: On the other hand, the opposition parties' donations will be questioned.
SG Mehta: We have to trust at some stage, someone as the final fiduciary authority.
Justice Khanna: Just one caveat- Victimisation and retribution is normally by a party in power, not by party in opposition. So the figures which you're saying - that maximum donations are to party in power- may not be logically flowing from the argument
Justice Khanna: The other issue is selective confidentiality...there are ways to get the information. It is easier for party in power to get the information.
SG: Anything else other than keeping it confidential will not be able to address the problem of victimisation. And victimisation incentivises payment in cash.
SG: I take it that your lordships are just putting to me what is their contention.
CJI: Obviously!...Our word is the last word only when the judgement is delivered.
CJI: What we are now doing is that in the effort of bringing white money in the process, essentially, we're providing for a complete information hole! That is the problem. The motive may be laudable. But the question is have you adopted proportional means?
CJI: We are not saying what the scheme should be. Maybe the earlier scheme failed. Maybe it didn't get you as much white money into the electoral funding as you otherwise would have liked but look at the safeguards in earlier provisions.